Booth v. New York Cent. R. Co.

• Decision Date: 01 March 1921
• Docket Number: 275
• Citation: 112 A. 894,95 Vt. 9
• Parties: JOHN R. BOOTH v. NEW YORK CENTRAL RAILROAD COMPANY
• Court: Vermont Supreme Court

112 A. 894

95 Vt. 9

JOHN R. BOOTH v. NEW YORK CENTRAL RAILROAD COMPANY

No. 275

Supreme Court of Vermont

March 1, 1921

January Term, 1921.

ACTION OF TORT for the alleged conversion by the defendant of a carload of box shooks. Plea, the general issue. Trial by jury at the September Term, 1920, Chittenden County, Butler, J presiding. At the close of all the evidence the Court directed a verdict for the plaintiff. Judgment on the verdict. The defendant excepted. The opinion states the case.

Judgment reversed, and judgment for the defendant.

Edwin W. Lawrence for the defendant.

Max L. Powell for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.

OPINION

TAYLOR

Prior to April 21, 1917, George B. Breon, a lumber dealer of Philadelphia, Pa., ordered from the plaintiff a carload of box shooks. Plaintiff shipped the shooks on that date from Burlington, Vermont, over the Rutland Railroad destined for Sodus, New York; but the car was later diverted to Rochester, New York, where it arrived April 28, 1917, over the defendant's road. The contract under which the shooks were received for transportation was the uniform bill of lading known as an "order bill of lading". The shooks were consigned to the "order of J. R. Booth, notify George B. Breon," at a given address in Philadelphia. By the terms of the bill of lading it was agreed that the surrender thereof properly indorsed would be required before the delivery of the property. The bill was indorsed by the plaintiff, "Upon payment of attached draft please deliver to the order of Geo. B. Breon", and went forward through certain banks; but the draft, not being honored, was never delivered. The defendant notified Breon of the arrival of the shooks at Rochester on the day of their arrival. Inspection without permission being forbidden by the bill of lading, May 3, 1917, Breon telegraphed the plaintiff "Please wire N.Y. C. here at Rochester to allow examination of car here"; in response to which the plaintiff wired the defendant, "Allow examination only". The customer for whose benefit the permission of examination was asked did not take the shooks, and, as the car was on demurrage, Breon arranged with the Whitney Elevator and Warehouse Company of Rochester for unloading, and requested the defendant to deliver it to the warehouse company. Pursuant to the request the defendant placed the shooks in storage with the warehouse company on May 8, 1917, with specific directions not to deliver without the surrender of the original bill of lading properly indorsed. The shooks were received by the warehouse company "account of order of J. R. Booth, notify G. B. Breon," and remained in storage in this situation until July 22, 1917, when they were consumed by a fire that destroyed the warehouse.

The action is tort based upon the claim that there was a conversion of the shooks by the defendant. It was agreed at the trial that the only issue was whether or not the shooks were delivered to Breon; so the real question is whether the delivery to the warehouse company was, in the circumstances, such a delivery to Breon as amounted to a conversion. At the close of the evidence, both parties moved for a directed verdict. In overruling the defendant's motion the court held that Breon had no authority to arrange for the storage of the shooks or to do anything with the shipment; that the defendant was guilty of a conversion if the shooks were delivered to the warehouse company on the authority or at the request of Breon, who arranged for the storage, the price to be paid, and the conditions under which they were stored, and if the defendant "recognized him as the party to deliver the goods to on his order, to the warehouse under his direction, even though it was subject to the payment of the draft attached to the bill of lading". The court directed a verdict for the plaintiff, holding that the defendant converted the shooks when it treated Breon as the consignee and arranged with him to deliver them into the warehouse on his account, under conditions agreed upon by Breon with the warehouse company, whereby the latter charged the storage to Breon and treated him as the owner of the goods. The defendant reserved exceptions to these rulings, among others, which present the principal questions argued on review.

In determining whether the placing of the shooks in storage was a delivery to Breon, reference must be had to additional facts. As justifying its conduct, the defendant relied upon the following provision of the bill of lading: "Property not removed by the party entitled to receive it within forty-eight hours (exclusive of legal holidays) after notice of its arrival has been duly sent or given may be kept in car, depot, or place of delivery of the carrier, or warehouse, subject to a reasonable charge for storage and to carrier's responsibility as warehouseman only, or may be, at the option of the carrier, removed to and stored in a public or licensed warehouse at the cost of the owner, and there held at the owner's risk and without liability on the part of the carrier, and subject to a lien for all freight and other lawful charges, including a reasonable charge for storage." As showing a wrongful delivery to Breon, the plaintiff relies upon the fact that the traffic manager of the warehouse company testified that he regarded the "notify" party in an order bill of lading as the consignee--that it was so regarded "by warehouses and railroads all over"--and the fact that certain advance charges (freight and demurrage) paid by the warehouse company, as well as charges for storage, were charged to Breon, and the further fact that a representative of the plaintiff who called on the defendant's freight agent at Rochester after the fire to inquire concerning the car of shooks testified that the agent said "they had turned the car over to Mr. Breon on Breon's orders ".

It appeared without conflict in the evidence that all "unclaimed freight" from the defendant's railroad at Rochester, meaning freight the delivery of which was not accepted, was stored with this particular warehouse company. It also appeared that, on Breon's request to deliver the car to the warehouse company, the customary steps were taken to place the shooks in stor- age as unclaimed freight. In usual course, an "unclaimed report" was issued by the defendant and a copy forwarded to the agent at Burlington for delivery to the plaintiff. A "notice of arrival" was sent by the defendant to the warehouse company and the car ordered into storage. The notice of arrival described the contents of the car specified "Order J. R. Booth, notify Geo. B. Breon," as consignee, and bore the direction "This freight must not be delivered without the surrender of the original bill of lading properly indorsed". This was all in accordance with the defendant's arrangement with the warehouse company. It further appeared that in order to...